Intel Components in the United States
DoD Procedures Governing Activities of Intel Components (1982)
See more about Intelligence Components Activities here.
Foreword
This DoD regulation seo:s fort:h procedures governing the activities of DoD intelligence components that affect United States persons. It implements DoD Directive 5240.1, and replaces the November 30, 1979 version of DoD Regulation 5.2:.o.l~R. It is.applicable to all DoD intelligence components.
Executive Order 12333, “United States Intelligence Activities, 11 stipulates that certain activities of intelligence components that affect U.S persons be governed b) procedures issued by the agency head and approved by the Attorney General. Specifically, procedures 1 through 10, as well as Appendix A, herein, require approval by the Attorney General. Procedures 11 through 15, while not requiring approval by the Attorney General, contain further guidance to DoD
Components in implementing Executive Order 12333 as well as Executive Order 12334, “President’s Intelligence Oversight Board”.
Accordingly, by this memorandum, these procedures are approved for use within the Department of Defense. Heads of DoD components shall issue such implementing instructions as may be necessary for the conduct of authorized functions in a manner consistent with the procedures set forth herein.
This regulation is effective immediately.
This part of Procedure 5 implements the Foreign Intelligence Surveillance Act of 1978 (reference (b)), and applies to electronic surveillance, as defined in that Act, conducted by DoD intelligence components within the United States to collect “foreign intelligence information,” as defined in that Act.
B. GENERAL RULES
1. Electronic surveillance pursuant to the Foreign Intelligence Surveillance Act. A DoD intelligence component may conduct electronic surveillance within the United States for foreign intelligence and counterintelligence purposes only pursuant to an order issued by a judge of the court appointed pursuant to the Foreign Intelligence Surveillance Act of 1978 (reference (b)), or pursuant to a certification of the Attorney General issued under the authority of section 102(a) of the Act.
2. Authority to request electronic surveillance. Authority to approve the submission of applications or requests for electronic surveillance under the Foreign Intelligence Surveillance Act of 1978 (reference (b)) shall be limited to the Secretary of Defense, the Deputy Secretary of Defense, the Secretary or Under Secretary of a Military Department, and the Director of the National Security Agency. Applications for court orders will be made through the Attorney General after prior clearance by the General Counsel, DoD. Requests for Attorney General certification shall be made only after prior clearance by the General Counsel, DoD.
3. Electronic surveillance in emergency situations.
a. A DoD intelligence component may conduct electronic surveillance within the United States in emergency situations under an approval from the Attorney General in accordance with section 105(e) of reference (b).
b. The head of ariy DoD intelligence component may request that the DoD General Counsel seek such authority directly from the Attorney General in an emergency, if it is not feasible to submit such request through an official designated in subsection B.2. , above, provided the appropriate offical concerned shall be advised of such requests as soon as possible thereafter.
PART 2: ELECTRONIC SURVEILLANCE OUTSIDE THE UNITED STATES FOR INTELLIGENCE PURPOSES
A. APPLICABILITY
This part of Procedure 5 applies to electronic surveillance, as defined in Appendix A, for foreign intelligence and counterintelligence purposes directed against United States persons who are outside the United States, and who, mder the circumstances, have a reasonable expectation of privacy. It is intended to be applied in conjunction with the regulation of electronic surveillance “within the United States” under Part 1 and the regulation of “signals intelligence activities” under Part 3, so that the intentional interception for foreign intelligence and counterintelligence purposes of all wire or radio communications of persons within the United States and against United States persons abroad where such persons enjoy a reasonable expectation of privacy is covered by one of the three parts. In addition, this part governs the use of electronic, mechanical, or other surveillance devices for foreign intelligence and counterintelligence purposes against a United States person abroad in circumstances where such person has a reasonable expectation of privacy. This part does not apply to the electronic surveillance of communications of other than United States persons abroad or the interception of the communications of United States persons abroad that do not constitute electronic surveillance.
B. EXPLANATION OF UNDEFINED TERMS
1. Electronic surveillance is “directed against a United States person” when the surveillance is intentionally targeted against or designed to intercept the communications of that person. Electronic surveillance directed against persons who are not United States persons that results in the incidental acquisition of the” commmications of a United States person does not thereby become electronic surveillance directed against a United States person.
2. Electronic surveillance is “outside the United States” if the person against whom the electronic surveillance is directed is physically outside the United States, regardless of the location at which surveillance is conducted. For example, the interception of communications that originate and terminate outside the United States can be conducted from within the United States and still fall under this part rather than Part 1.
C . PROCEDURES
Except as provided in section D., below, DoD intelligence components may conduct electronic surveillance against a United States person who is outside the United States for foreign intelligence and counterintelligence purposes only if the surveillance is approved by the Attorney General. Requests for approval will be forwarded to the Attorney General by an official designated in section E1., below. Each request shall include:
1. An identification or description of the target.
2. A statement of the facts supporting a finding that:
a. There is probable cause to believe the target of the electronic surveillance is one of the following:
(1) A person who, for or on behalf of a foreign power is engaged in clandestine intelligence activities (including covert activities intended to affect the political or governmental process) , sabotage, or international terrorist activities, or activities in preparation for international terrorist activities; or who conspires with, or knowingly aids and abets a person engaging in such activities;
(2) A person who is an officer or employee of a foreign power;
(3) A person unlawfully acting for, or pursuant to the direction of, a foreign power. The mere fact that a person’s activities may benefit or further the aims of a foreign power is not enough to bring that person under this subsection , absent evidence that the person is taking direction from, or acting in knowing concert with, the foreign power;
(4) A corporation or other entity that is owned or controlled directly or indirectly by a foreign power; or
(5) A person in contact with , or acting in collaboration with, an intelligence or security service of a foreign power for the purpose of providing access to inforniation or material classified by the United States to which such person has access.
b. The electronic surveillance is necessary to obtain significant foreign intelligence or counterintelligence.
c. The significant foreign intelligence or counterintelligence expected to be obtained from the electronic surveillance could not reasonably be obtained by other less intrusive collection techniques.
3. A description of the significant foreign intelligence or counterintelligence expected to be obtained from the electronic surveillance.
4. A description of the means by which the electronic surveillance will be effected.
5. If physical trespass is required to effect the surveillance, a statement of facts supporting a finding that the means involve the least amount of intrusion that will accomplish the objective.
6. A statement of period of time, not to exceed 90 days, for which the electronic surveillance is required.
7. A description of the expected dissemination of the product of the surveillance, including a description of the procedures that will govern the retention and dissemination of communications of or concerning United States persons other than those targetted , acquired incidental to such surveillance.